COLUMN: The difference between separation and divorce

I am frequently asked what the difference is between separation and divorce.

  • Sep. 19, 2015 5:00 a.m.

Legal-Ease by Karen McNeilly

I am frequently asked what the difference is between separation and divorce.

They are two very different things. Separation is the end of your relationship as a couple.  It is an emotional state of being. Only you and your spouse can determine if your relationship has come to an end, or what your separation date is.

In considering when, or if, you are separated, some of the things to think about are: when one spouse moved into a separate part of the house, or out of the house altogether.  When you stopped being intimate, or socializing together, or going on holidays together.

Unlike separation, divorce is defined legally, by the court. A divorce is a court order that brings your marriage to an end in a legal sense, and allows the former spouses to marry someone else.

Without a divorce you are still legally married, even though you may have been separated for a long time. You still have legal rights and obligations as spouses.

The separation date is used to determine what family property and debts exist to be divided between the spouses. A separation does not change your legal rights or obligations.

Because divorce is a legal matter, it changes your financial legal rights and obligations. Once you are divorced, you no longer have the right to inherit a portion of your spouse’s estate, or to be their executor. If your spouse still wants you to inherit, or be their executor, they must complete a new will. There are time limitations that begin once you are divorced. Because there are legal consequences of divorce, you should always consult a lawyer to ensure you are protected.

Once a separation occurs, legal rights and responsibilities toward children come into effect. Many of the rights, such as the right to have a relationship with both parents, and to receive  support from both parents, are rights of the children, therefore, they exist whether a parent is separated or divorced.

When an application for a divorce order is received by the court, one of the few things the judge checks is to ensure that the correct amount of child support is being paid.

Separation and divorce can be complicated. To ensure that you and your children are protected, consult a family lawyer.

Karen is an associate lawyer with RDM Lawyers LLP in Abbotsford.  She practices in the area of family law.  Questions or comments about this article can be sent to legalease@abbynews.com.